Peace Officer Sexual Battery Statute Ruled Unconstitutional
A state law making it a felony for a peace officer to have sex with a minor more than two years younger than the officer is unconstitutional, the Ohio Supreme Court ruled today.
In a 4-3 decision, the Supreme Court found a provision in Ohio’s sexual battery statute applying to peace officers violates the equal protection clauses of the Ohio and U.S. Constitutions. Writing for the majority, Chief Justice Maureen O’Connor noted that other provisions of the sexual battery statute, such as those that apply to a teacher, a cleric, or a mental health provider, require an occupational relationship with the minor, while the peace officer provision applies even when there is no occupation-based relationship between the peace officer and the victim.
The Court affirmed the decision of the Eighth District Court of Appeals, which found the conviction of Waite Hill police officer Matthew Mole unconstitutional and overturned his two-year prison sentence.
In separate dissenting opinions, Justices Sharon L. Kennedy and Judith L. French wrote that the General Assembly only had to have a rational basis for establishing the prohibition and that holding peace officers to a higher standard of conduct is enough justification to pass constitutional muster.
Officer Meets Teen Through Mobile Phone Dating Application
Mole first encountered a minor identified in court documents as J.S. when J.S. initiated a conversation with Mole through a mobile phone dating application. J.S. claimed to be 18 and a high school senior, but was 14 at the time. Mole was 35.
Mole visited J.S. at the teen’s family’s home at 3 a.m. J.S. led Mole to an unlit sunroom at the back of the house where they engaged in sexual activity. Soon thereafter, they were discovered by J.S.’s mother, and Mole then first learned J.S. was 14.
It is undisputed that Mole never told J.S. that he was a peace officer, and that J.S. did not know that Mole was a peace officer.
Mole was charged with one count of unlawful sexual conduct with a minor, and one count of sexual battery under R.C. 2907.03(A)(13), which prohibits sexual conduct by a peace officer with a minor when the officer is more than two years older than the minor.
The unlawful-sexual-conduct law prohibits sexual conduct with a minor between the ages of 13 and 15 when the offender is 18 or older and knows the minor’s age or is reckless in that regard. The sexual battery statute only requires that the state prove the peace officer had sex with a minor, and not that the peace officer knew the victim’s age.
In Mole’s case, the jury deadlocked on the unlawful-sexual-conduct charge against Mole, and the court declared a mistrial on that count. The state decided not to retry Mole on that charge and dismissed that charge. However, the trial judge convicted Mole of sexual battery and sentenced him to two years in prison. (Mole has served that prison sentence.) Mole appealed his conviction to the Eighth District.
In a split decision, the Eighth District found R.C. 2907.03(A)(13) violated the equal protection and due process clauses of both the state and federal constitutions. The state appealed that decision to the Supreme Court, which agreed to hear the case.
Court Explains Rational Basis Review
Chief Justice O’Connor explained that lawmakers have a right to classify groups of individuals and set different standards of treatment for those classes, but that the constitution only permits those classifications if there are legitimate reasons for them. She explained the standard to review this law’s treatment of peace officers requires the Court to apply a “rational basis” test, which will uphold a law if it is rationally related to a legitimate governmental purpose.
“Thus, although we respect that the General Assembly has the power to classify, we insist that its classifications must have a reasonable basis and may not ‘subject individuals to an arbitrary exercise of power,’” she wrote, citing the Ohio Supreme Court’s 1992 Conley v. Shearer decision.
Although the rational-basis standard requires that courts give great deference to the legislature, Chief Justice O’Connor stated the Court still must examine why lawmakers adopted a specific classification for peace officers in the sexual battery law and what objective the state intended to obtain from it.
Sexual Battery Law Revised Over Time
With changes in societal norms, the laws of consensual sex have shifted over time, Chief Justice O’Connor observed, noting that until Ohio’s 1970s update of its criminal code it was a crime for anyone over 17 to have sex with a female under 16, regardless of whether it was consensual. The 1970s’ overhaul intended not to criminalize sexual conduct between consenting adults, but it did add provisions to criminalize “sexual conduct that is assaultive, that involves the young and immature, or that carries a significant risk of harm.”
Using its new standards, the General Assembly created the new offense of sexual battery, R.C. 2907.03, to prohibit “sexual conduct with a person other than the offender’s spouse in a variety of situations where the offender takes unconscionable advantage of the victim.”
The original act related to knowing acts of coercion or exploitation, or an offender who is a parent, guardian, or custodian of a hospitalized person, or someone with an authoritative relationship over a person. The law was subsequently expanded when prosecutors were unable to get convictions from other incidents involving inappropriate conduct by adults who had special authoritative relationships with minors or vulnerable populations.
New subdivisions of the law were added to apply to teachers, coaches, and other school personnel, then later to scouting troop leaders, mental health providers, detention facility personnel, and clerics. In all of those provisions the law requires the person to have some occupational relationship with the minor.
Chief Justice O’Connor noted the peace officer provision was added in the wake of the Third District Court of Appeal’s 2006 decision in State v. Stout. In that case, Stout, a Logan County detective, had befriended a young victim during his investigation of a case involving her. When the girl turned 16, she and Stout had sexual conduct in Stout’s sheriff’s-office vehicle. Prosecuting Stout for sexual battery was unsuccessful, in part, because the version of the law at that time did not apply to peace officers. Lawmakers amended the statute to respond to that case and others like it
Classification Not Based on Professional Relationship
The state argued the rational basis for adding the classification of peace officers without regard to whether they used their professional status to facilitate forbidden sexual conduct was for two reasons: to hold peace officers to a higher standard to ensure integrity and maintain public trust, and to protect minors.
Chief Justice O’Connor noted lawmakers focused their criminalization of sexual conduct on those who used their professional status to take unconscionable advantage of minors, except in the case of peace officers. “Peace officers are liable under the statute even if they did not use their status as peace officers to identify potential victims and abuse them,” she wrote.
The Court agreed that peace officers occupy a unique position of public trust that calls for special standards and penalties in certain circumstances.
“But we do not agree that a person’s status as a peace officer justifies the imposition of different sexual-conduct standards for peace officers in circumstances in which the officer’s status is irrelevant,” Chief Justice O’Connor wrote. “The sexual conduct at issue here was unrelated to Mole’s professional status. And the jury’s failure to convict him of unlawful sexual conduct with a minor makes clear that, but for his status as a peace officer, Mole would not be subject to criminal liability for the sexual conduct at issue in this case.”
The Court stated a violation of the sexual battery statute could justify termination of an officer’s employment, and noted several cases where courts have upheld discharges and disciplinary actions against officers for violating the professional standards imposed on them. Chief Justice O’Connor pointed out in all of those cases the actions were directly tied to the officer’s conduct as an officer.
“Peace officers must accept certain burdens as part of their employment in order to maintain the honor and privilege of being peace officers and to foster public trust. They do not lose all of their rights as ordinary citizens, including their constitutional right to be treated equally under the criminal law, simply because they have chosen the profession of peace officer,” she wrote.
Addressing the state’s interest in protecting minors, Chief Justice O’Connor explained while the state is seeking to protect minors against officers who use their authoritative relationship with minors to take advantage of them, the law does not tie the occupational relationship to the crime.
“Thus, although the state’s interest in protecting minors from sexual conduct is rational, the classification of peace officers in R.C. 2907.03(A)(13) is not,” she concluded.
Chief Justice O’Connor held that R.C. 2907.03(A)(13) is violative of Ohio and federal constitutions’ equal protection clause. She made clear that “even if we have erred in our understanding of the federal Constitution’s Equal Protection Clause, we find that the guarantees of equal protection in the Ohio Constitution independently forbid the disparate treatment of peace officers through a legislative scheme that criminalizes their sexual conduct while removing virtually all of their due-process protections, such that an officer’s conduct can constitute a criminal offense even when that conduct is not found to be illegal by a jury of the officer’s peers.”
Justices Paul E. Pfeifer and William M. O’Neill joined Chief Justice O’Connor’s opinion.
Justice Judith Ann Lanzinger concurred in judgment only with a separate opinion, in which she maintained the decisions of the U.S. Supreme Court should not resolve the questions of constitutional rights guaranteed by provisions of Ohio’s constitution. Based on her analysis of the Ohio Constitution, Justice Lanzinger concluded that the statute unconstitutional.
Dissents Maintain Mole Failed to Prove Statute Unconstitutional
In her dissent, Justice Kennedy wrote that the majority departs from a "century-old" precedent by declaring that the Ohio Equal Protection Clause affords greater protection than the federal constitution. In reaching this conclusion the majority points to no text or historical analysis to explain its departure from 210 years of precedent she said.
In the two-step rational basis review analysis the majority agrees that the state has a valid interest in maintaining the public's confidence in peace officers by ensuring there conduct is above reproach Kennedy wrote. Mole challenged the constitutionality of the law on its face, which requires him to prove that it would be unconstitutional when applied in all circumstances, not just how it was applied to Mole in his particular situation. She noted this is the most difficult challenge to a law.
Countering Mole’s argument, Justice Kennedy explained that there are logical reasons for treating peace officers differently than other persons who hold positions of trust solely based on their profession, and the legislature was within its rights to impose the condition on officers.
“Criminalizing sexual conduct between a peace officer and a minor is rationally related to a legitimate state interest because it punishes peace officers for conduct that if discovered would diminish them in the eyes of the community,” she wrote. “If a peace officer discovered after the fact that the person with whom he engaged in sexual conduct was a minor, he would have a strong incentive to do whatever is necessary to ensure that his employer never found out, even to the point of compromising his integrity. Moreover, there is the potential for blackmail, which could lead to corrupt behavior or worse.”
Even the majority recognizes that the statute is not "unconstitutional in all applications" Kennedy said. Therefore, the statute cannot be facially unconstitutional she concluded.
Justice French wrote that another circumstance where the act would be valid is the situation in Stout, which prompted the legislature to amend the law. In that case, because the officer used his professional status to engage in sexual conduct with a minor, the broadly written sexual battery statute would have led to a conviction of the officer.
“The General Assembly determined that the privilege of serving as a peace officer comes with the obligation to adhere to a higher standard of conduct both on and off duty. As permitted under rational-basis scrutiny, the legislature concluded that the benefits of prohibiting all such sexual encounters between peace officers and minors outweigh the risk of underinclusion,” she wrote.
Justice Terrence O’Donnell concurred in both Justice Kennedy’s and Justice French’s opinions.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.
PDF files may be viewed, printed, and searched using the free Acrobat® Reader
Acrobat Reader is a trademark of Adobe Systems Incorporated.